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COA vacates carrying a handgun without a license adjudication

December 8, 2017

A juvenile adjudicated as a delinquent for two handgun-related offenses will have one of those adjudications vacated after the Indiana Court of Appeals found a lack of statutory authority to support the adjudication.

In J.R. v. State of Indiana, 49A02-1704-JV-754, Indianapolis Metropolitan Police Department Officer Richard Christian was dispatched to an eastside Family Dollar store in January, where he found three males trying to enter a vehicle. They fled when they saw Christian, but officer Nicholas Snow, who was on patrol nearby, caught one of the suspects, later identified as 16-year-old J.R.

Snow conducted a pat-down search of J.R. and did not find anything on his person, but later observed him moving his legs as if he was trying to adjust something. Snow then conducted a second pat-down, this time including a pants sweep, and found a concealed gun.

The state filed a petition alleging J.R. had committed acts that would be considered dangerous possession of a firearm and carrying a handgun without a license, both Class A misdemeanors if committed by an adult. The juvenile court entered true findings on both allegations and placed J.R. on probation, with a suspended commitment to the Department of Correction.

On appeal, J.R. first argued Snow’s second pat-down search violated his rights under the Fourth Amendment and Article I, Section 11 of the Indiana Constitution. But in a Friday opinion, Indiana Court of Appeals Judge John Baker disagreed, writing instead that J.R. had been hostile toward Snow when he was initially stopped and that his leg movements drew attention to his body.

“These actions gave Officer Snow a particularized and objective basis for suspecting that J.R. was concealing something on his person and justified the officer’s second pat-down search,” Baker wrote.

Similarly, under the three-part test in Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005), Snow’s second search was reasonable under the totality of the circumstances and, thus, was not a violation of J.R.’s state constitutional rights, the judge said.

However, the appellate panel agreed with J.R. that his adjudication for carrying a handgun without a license must be vacated, but for a different reason than he put forth. Rather than relying on J.R.’s double jeopardy claim, the court pointed to Indiana Code section 35-47-10-5(a), which holds that a child who possesses a firearm for any purpose not permitted by statute commits dangerous possession of a firearm.

“In other words, Indiana Code section 35-46-2-1 applies only to adults who possess handguns without a license, and as a matter of law, a person under the age of eighteen is not eligible for such a handgun license,” Baker wrote for the unanimous court. “Instead, a person under the age of eighteen, such as J.R., who possess a handgun for any unauthorized reason commits, and only commits, dangerous possession of a firearm.”

Thus, the case was remanded for the carrying adjudication to be vacated and for resentencing, if necessary.

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